Trials and tribulations of Kamala Harris, D.A. / 2 years into term, prosecutor, police have their differences

Published 4:00 am, Monday, March 20, 2006

CHRISTINA KOCI HERNANDEZ/CHRONICLE
We're doing a two year anniversary story on SF District Attorney Kamala Harris.

CHRISTINA KOCI HERNANDEZ/CHRONICLE
We're doing a two year anniversary story on SF District Attorney Kamala Harris.

Photo: CHRISTINA KOCI HERNANDEZ

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Former Mayor, Willie Brown, right, laughs it up with District Attorney, Kamala Harris at the reception before the rededication ceremony for Twenty-First Century Academy. Twenty-First Century Academy, one of the Dream Schools in Bayview-Hunters Point, is re-christened the Willie L. Brown Jr. College Prepatory Academy. The former mayor is there to be honored and meet the kids who are attending his school. Photo by Carlos Avila Gonzalez / The San Francisco Chronicle
Photo taken on 9/27/05, in San Francisco,CA. less

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Former Mayor, Willie Brown, right, laughs it up with District Attorney, Kamala Harris at the reception before the rededication ceremony for Twenty-First Century Academy. Twenty-First ... more

Photo: Carlos Avila Gonzalez

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Photo: CHRISTINA KOCI HERNANDEZ

Trials and tribulations of Kamala Harris, D.A. / 2 years into term, prosecutor, police have their differences

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Halfway into her term as San Francisco's district attorney, Kamala Harris wins praise from colleagues for bringing professionalism and innovation to the office, but has been unable to quell police criticism of her handling of criminal cases -- particularly homicides.

Harris, the first career prosecutor to serve as the city's district attorney in decades, took office with a pledge to be "smart on crime." She has pushed hard to update the office by bringing in technology and outside expertise.

She promised to crack down on drug and gun crimes, which she sees as primary causes of many of the killings in the city's African American neighborhoods. And she said in a recent interview that attacking the decade-high murder rate "has been a priority of this administration from day one."

The violence "is tearing apart the communities I care most deeply about," she said. "It is tearing me apart as well -- to see who is being killed on a regular basis by whom. Knowing it is predominantly young kids of color in poor communities wiping each other out distresses me like I cannot explain."

Yet police who chafed under her predecessor, Terence Hallinan, have been as vigorous in their criticism of Harris. Her track record on crimes doesn't match her rhetoric, they say, and they accuse her of having been slow to prosecute numerous murder suspects.

"We'd like to see homicide cases charged earlier," said Deputy Police Chief Morris Tabak, head of the department's investigations bureau. "When people are dying, we are obligated to do everything possible."

Capt. Tim Hettrich of the narcotics and vice units credits Harris with tightening loopholes in bail and drug programs that defendants exploited, a change that has resulted in more suspects facing jail time. But he said Harris routinely offers favorable deals to resolve cases short of trial and refuses to prosecute others.

"What this is all about, with her, is conviction -- the percentage of convictions compared to other district attorneys in the state of California," Hettrich said.

"It's not a question of winning or losing as though this is a sports game," she said. "It has to be defined as: Has justice occurred in the process and the outcome?

"Justice does not necessarily occur if you put all the expectations of the community, all the resources that are necessary to putting on a trial, just to 'go for it,' knowing that you don't have the evidence to convict," Harris said. "Because in that process a guilty man is getting away with murder, and the community is certainly not winning."

After he had the job for eight years, Hallinan left his office in disarray, critics say, with top prosecutors leaving or retiring and many cases languishing.

"There were files that literally couldn't be found," said Harris' chief assistant, Russ Giuntini. "We couldn't find out who charged the cases."

Hallinan, a former defense attorney and city supervisor turned prosecutor, survived a series of blunders over two terms. But by the time Harris defeated him in November 2003, his staff was demoralized. He was wounded politically in the fallout of the Fajitagate scandal, after the obstruction case fizzled that he championed against top members of the Police Department, including the chief.

Police, who had long faulted the district attorney's office as being too lenient on drug and gun cases, cautiously embraced Harris as the antidote to everything Hallinan.

The prospects for a new partnership appeared to be good when Harris assumed the job in January 2004, pledging to work better with police from the start. She soon brought in top-flight prosecutors such as Valerie McGuire, who had worked in Solano County's homicide unit, and espoused a professional demeanor and an emphasis about being smarter in combatting crime.

Harris also took on the professional and political trappings that Hallinan shunned. She became active in state and national Democratic politics, attending the Democratic National Convention in 2004 and aligning herself with U.S. Sen. Barack Obama, D-Ill., the first African American male Democrat elected to the Senate.

She embraced the California District Attorneys Association, a group with which Hallinan associated only reluctantly. Many began to see the 41-year-old top prosecutor as a candidate for higher office.

Defense attorneys, some of whom complained that Hallinan was inept, soon noticed a change in the district attorney's operation.

"As a defense lawyer, it's harder," said Jim Collins, a longtime critic of Hallinan. "The office has become more professional and better at prosecuting crime. The deputies are working harder; there's more oversight. I think the (plea bargain) offers are getting tougher."

Gary Delagnes, head of the police officers union, said Harris "is a prosecutor. She understands what a prosecutor is." Her office, he said, tries "to work with the Police Department in a way that Terence Hallinan never did."

Hallinan said that for all his troubles with the brass, he had a good working relationship with police. "I knew that, for example, the narcotics people didn't agree with my approach -- I was into treatment rather than incarceration," he said. "But on the violent crimes, we were definitely on the same track."

Four months into her tenure, Harris got off track with police and even some fellow Democrats, such as Sen. Dianne Feinstein, when she took just two days after the arrest of police Officer Isaac Espinoza's alleged killer before announcing she would not seek the death penalty.

Harris first said she was sticking to a campaign promise never to seek capital punishment when she decided to pursue life in prison without parole for David Hill in the April 2004 shooting. Later, she insisted that she had acted only after reviewing the facts and the law in the case.

Police disagreed with the decision and found the speed with which Harris reached it unseemly. Her supporters, however, believe Harris came out a winner.

"She showed she is a person of principle," said Arthur Wachtel, a criminal defense attorney. "She could have waffled, but she kept her promise to the voters."

Eric Jaye, a San Francisco political consultant who worked on Mayor Gavin Newsom's campaign, said Harris' approval ratings shot up after her feud with police. Surveys consistently rank her among the most popular political figures in the city, he said.

"What voters remember about Kamala Harris is, she wasn't afraid to take a stand -- that is a very positive impression," Jaye said. "It is a strong political base, and she can build on it."

Jaye said Harris "certainly knows politics and isn't afraid of a camera or press release. She seems to be doing those things that folks do who are seeking higher office one day."

On the other hand, Jaye said, "if that higher office should be beyond the borders of San Francisco, she will face the prejudices of the people in the rest of the state. She will have to answer for some of the political positions she has taken here, which are quite typical for here but seem radical to voters in other parts of our state."

She still is arguing with police, nearly two years after the Espinoza slaying.

"Obviously, we'll never agree on the philosophy on Espinoza," said Delagnes of the officers union. "We won't agree as long as we both live. There is nothing I can do about it now."

And Harris soon clashed with police on another level.

When she took office, Harris made it a high priority to eliminate a backlog of 73 homicide cases she inherited from Hallinan, some of which had been pending for several years. She soon took the unusual step of sending out letters to defense attorneys who had murder defendants, inviting them to discuss possible deals.

Fifteen of the defendants were convicted of murder within two years, a review of court records and statistics provided by Harris' office showed. But in 32 cases, Harris' office cut deals for manslaughter or took pleas to other crimes such as assault or burglary. Those deals carried an average sentence of 10 1/2 years.

Overall, the average sentence on the resolved backlogged homicide cases was 24 1/2 years. Several cases either have yet to be resolved or led to trials that did not result in murder convictions.

Harris said many of the plea-bargained cases had been mishandled by Hallinan's administration, and some were more than four years old.

"There were cases that were charged that should not have been charged, and they fell apart," she said. "There have to be standards in place."

Harris declined to discuss the details of specific cases, saying only that "in the history of this office, there was a time when cases were charged without a thorough review of the evidence."

But police say some of the case settlements amounted to fire-sale deals.

"It's not like her predecessor accepted a bunch of junk," said Lt. John Hennessey, head of the police homicide detail. "They were good cases when they were filed."

Police point to the case they made against David Taylor, now 45, who, confessed to investigators that he killed his 65-year-old mother in July 2001. He acknowledged locking her body in her home, setting the alarm and fleeing the state, then trying to use her ATM card, police said.

Taylor said he had mistaken his mother, Altaneze Taylor, for an intruder in a fit of crack cocaine-induced paranoia, hitting her first with a hammer and then taking her, still alive, upstairs and stabbing her with scissors.

Prosecutors cut a deal after Taylor's attorney raised the potential for a diminished capacity defense, citing records that showed a history of mental illness. They agreed to let Taylor plead guilty to voluntary manslaughter in exchange for a sentence of 12 years in state prison, with no requirement for psychological treatment.

Police homicide Inspector Maureen D'Amico, who led the Taylor investigation, said she is still furious about how Harris' office resolved the case. "This deal was made without any input from me," she said.

She said no mental defense would explain away the apparent care that Taylor put into both the killing and his escape.

"It was just picture-perfect investigation when everything was done right, done well," she said. "If (Taylor) gets out, goes back to crack cocaine, he is liable to flip out. This time it could be an innocent citizen."

A top prosecutor under Hallinan, Murlene Randle, said the cases the Hallinan administration left behind were tough to prove, but not impossible.

"If they were as horrible as they have been described, and there was no evidence ... why didn't they dismiss them all?" Randle said. "Wouldn't that be a moral thing to do?"

Giuntini, Harris' chief assistant district attorney, said that in all the plea-bargained cases, "it was questionable whether you could prove a murder."

He said delays in getting the cases to trial under Hallinan had often compounded existing flaws. "It rarely helps the prosecution to delay it," he said.

Police investigators also complain about a reluctance by Harris' office to push forward on recent, hard-to-prove homicide cases. Under pressure from Newsom to gain control over a rising murder rate, they have tried tactics either to force her hand or go around her.

Tabak, the deputy chief, said that soon after Harris took office, cases with known suspects but troublesome witnesses began to languish, with no decision forthcoming from prosecutors on whether to file charges.

"That's where the disagreement starts," he said. "These cases need to go to juries. Let them consider the facts and the evidence."

In seven homicide investigations, police asked Harris to take the cases to a grand jury to provide a measure of protection for fearful witnesses. Unlike at pretrial hearings, witnesses testify in private before grand juries and do not face defense cross-examination.

Harris, however, was not eager to go before the panels, citing the legal prohibition against using grand jury testimony at trial. A March 1 indictment of two suspected gang members in a Bayview district shooting last fall marked the first time the district attorney had taken a homicide to a grand jury.

"We take it on a case-by-case basis," Harris said. "It proved to be the right tool in this case."

Tabak also took another tack. In 20 instances since Harris took office, homicide investigators went straight to judges to issue so-called Ramey warrants for murder suspects, instead of the usual method of submitting cases to prosecutors for a charging decision.

The standard that judges use to sign Ramey warrants is probable cause to believe someone has committed a crime. It is the same standard police require to make an arrest.

Harris and other prosecutors say they have to meet a heavier burden to file charges and that they are ethically bound to bring only cases they can prove beyond a reasonable doubt.

"The law is quite clear -- there is a lower standard that is required for an arrest versus charging a case," Harris said. "It's all very clear and established."

Police seldom if ever secured Ramey warrants during the Hallinan era, said Randle, who was head of homicide prosecutions under the former district attorney and is now a labor negotiator for the city. She said her philosophy, in general, was to let juries decide cases that might appear shaky.

"We are talking about murderers -- we are not talking about shoplifters," Randle said. "We're talking about when you know the person committed the crime, but it's a tough case. We always say a play cast in hell won't have angels for witnesses. We know the witnesses are often going to be people who are in the area of drug dealing, or using drugs. That doesn't mean they didn't know what they saw."

Giuntini, Harris' second-in-command, said the charging standards are no more lenient in San Francisco than in his previous job in the Alameda County district attorney's office, which has a reputation for being tough on defendants.

"That is just a way for people to express unhappiness," he said of criticism of Harris. "But it is not accurate."

Prosecutors are under no obligation to file charges against people arrested under Ramey warrants, and in fact, Harris' office has released about half the suspects arrested by police using the method. Giuntini said that ultimately, police are doing a disservice to the community when they resort to the end run.

"Word gets out and gets back to the hood -- that's just a reality -- that when the police put the cuffs on you, you don't stay locked up," Giuntini said.

Police have done another end run around Harris' office by taking several gang-related homicide cases to federal prosecutors, who have used grand juries to issue indictments in a total of 12 killings.

Tabak said the federal indictments helped police reduce the number of so-called black-on-black homicides in the southeastern part of the city -- killings that typically involve rival gang members. He said black-on-black violence diminished last year, even as the overall homicide rate reached a 10-year high.

"To us, it's not a coincidence," he said. The reduction is "directly attributable to all the indictments handed down."

Far from being annoyed at the tactic of using federal grand juries, however, Harris' office welcomes it. Giuntini said that unlike local prosecutors, authorities operating under federal rules of evidence aren't hamstrung from using criminals' accomplices as witnesses without corroboration.

"Almost all of those, they have an insider who has rolled," Giuntini said. "They can use (an insider), without any limitation, whereas we're limited to having to corroborate an insider."

Giuntini said he always prided himself on working well with police in his years as a prosecutor in Oakland. He said the touch-and-go relationship between prosecutors and police in San Francisco leaves him frustrated.

"We're going to continue to work at it," he said. "I think there has to be trust -- we all want to solve these homicides."

Police have also challenged Harris over whether she is living up to her promises to get tougher on gun crimes.

"Ex-felons in possession of firearms spend little or no time in jail," Tabak said. "How can you say you are tough on guns, narcotics, when there's little or no consequence? That's what we see."

Rick Bruce, a now-retired captain at the Bayview station, was so concerned about the deals being given to gun offenders that he tracked them and released the results to the community in the form of an e-mail newsletter.

In his August 2005 review, done shortly before he left the department, Bruce cited 17 cases that were resolved in the six-month period he studied. He called the results a "bit shocking."

He cited one settlement involving a man booked for having a loaded concealed handgun that had been stolen. The defendant pleaded guilty to a misdemeanor and was given three years' probation and three days in jail.

Giuntini acknowledged that in a couple of cases, deals were made that didn't follow Harris' policy of making sure that people convicted of gun possession serve at least 90 days.

The defendants in Bruce's survey served an average of 70 days.

"We found some discrepancies," Giuntini said, adding that top prosecutors now must approve all settlements in gun cases.

Harris, in an e-mailed response to Bruce's review, said gun criminals often served 10 days or less before she took office.

"I think anyone would agree that is far too little time," she said. "A look at Capt. Bruce's list shows the average length of sentences is growing. The improvement is encouraging, but it is not enough."

One area in which police give Harris credit is in clamping down on drug dealers escaping jail sentences through diversion programs. Capt. Hettrich said it was a system abused by drug dealers.

"At least we cleaned it up a little bit," he said.

Harris, he said, has changed the standards set for referring drug-dealing offenders to drug court -- a special court that is created to supervise a diversion program in lieu of convictions.

Giuntini said the rules have been made so tight that public health officials have asked his office to loosen them, so more people would be eligible for the program. "Drug court (enrollment) is down by 40 percent," he said. "They are crying out for more people."

He said the drug diversion system before Harris took office was running amok, adding that police who complain about gun and other cases have been "a little disingenuous in not recognizing what has been done."

"I think this office was run with a lot more political motivation," he said. "We are trying to depoliticize what was a political office. We are not so concerned about the politics. We are concerned about the right thing and doing things ethically."

Harris said that "we've all been working really, really hard, with a genuine desire to fix this place. ... I'd like to believe that we've made all the right decisions."

For their part, police say relations with the district attorney's office remain cordial, even if differences continue.

"We have open lines of communication," Tabak said. "We talk about problems, ways to resolve issues."

And Harris herself is doing some things differently. Since Lashuan Harris, a 23-year-old woman from Oakland, was arrested Oct. 19 for throwing her three young sons into the bay, the district attorney has not taken the possibility of seeking the death penalty off the table.

As she said after ruling out capital punishment for the alleged killer of Officer Espinoza in two days, Harris said she was "reviewing the facts and the law" before deciding what penalty to seek against the Oakland woman.

Rory Little, a professor at UC Hastings College of the Law, said the time Harris is taking to make a decision showed that the Espinoza case was a huge awakening for her.

"I think, overall, she learned from that experience that she has to let the process unfold, and it's larger than her personal views," Little said. "She's learned that a politician running to be prosecutor is different from running an office."

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